By now you’ve likely heard of, and perhaps read, the much-vaunted memorandum written by the Republican majority staffers on the House Permanent Select Committee on Intelligence (HPSCI) and released to the public this past Friday. In short, the memo claims that evidence that HPSCI has uncovered raises serious questions about the legitimacy and legality of electronic surveillance of a U.S. citizen, Carter Page, under the Foreign Intelligence Surveillance Act (FISA). Some outlets (and members of Congress) have said that the memo uncovers a scandal worse than Watergate that totally discredits the DOJ investigation of Russian interference in U.S. elections and any connection to the Trump campaign being led by Special Counsel Robert Mueller. Other commentators have called the memo “a dud.” In the run-up to its controversial release, many Democrats on HPSCI suggested that releasing the memo would expose “sources and methods” of intelligence collection—among the most protected of the U.S. government’s secrets—while Republicans on that same committee suggested that it proved foul play by government investigators and lawyers leading up to (and beyond) the 2016 presidential election.

So what’s going on? What does the memo actually say and how is it significant? First, I encourage you to read it for yourselves. It’s only 3-and-a-half pages long. After a close read, it’s safe to say a few things about the memo and what it shows. First, it’s pretty clear that, at least in its published form, the memo does not reveal sources or methods of intelligence. That doesn’t mean that it’s not a big deal that it was declassified; I’m aware of no prior instance in which Congress has revealed the existence—much less named the target—of a specific FISA electronic surveillance order. It’s also apparent that the memo reveals next to nothing that substantiates the charge that the FISA process was abused. That’s not to rule out the possibility that the FISA process was abused by government officials, just to say that the memo itself doesn’t come anywhere close to making that case. Below, I’ll try to explain why.

Backing up a bit, it might be helpful to have a sprinkle of background information about FISA. FISA was enacted by Congress in 1978 in the aftermath of the Watergate scandal and the congressional Church Committee investigation that revealed significant abuses by U.S. intelligence agencies in collecting information about U.S. citizens in the absence of a warrant or other legal process. FISA is a complicated statute that regulates many tools of intelligence collection. If you’re interested, National Security Investigations and Prosecutions is a leading treatise with extensive coverage of the statute and its history. For purposes of the memo, the most important provisions are in Title I of FISA, covering the process to obtain an order authorizing electronic surveillance of a suspected foreign agent from the Foreign Intelligence Surveillance Court (FISC). The FISC consists of 11 federal judges from district courts around the country, who are in turn appointed by the Chief Justice of the United States to serve 7-year terms on the FISC, in addition to the lifetime appointment to the district court they are already serving. To obtain an electronic surveillance order, the government has to show several things, including that there is probable cause to believe that the target is a “foreign power” or an “agent of a foreign power.” For “United States persons”—a category broader than, but inclusive of, U.S. citizens—the definition of the term “agent of a foreign power” generally includes a requirement that the person’s activities “may involve a violation of the criminal statutes of the United States.” For U.S. persons, a FISA electronic surveillance order expires after 90 days unless the FISC (either through the same or a different judge) grants an extension based on new evidence showing probable cause. Proceedings before the FISC are almost all under seal due to the classified information before the court. Moreover, apart from statutory procedures for the court to appoint an amicus curiae to argue against the government’s position in certain matters, the government generally practices before the FISC in Title I cases without any other party’s involvement.

The memo alleges that the process for obtaining a FISA order to monitor Mr. Page’s communications was flawed because DOJ and the FBI did not disclose to the FISC that one of the bases for the order—the infamous Steele dossier—was prepared as opposition research on behalf of the Democratic National Committee. It notes that the DOJ sought and obtained a FISA order for Mr. Page’s communications on October 21, 2016 (about three weeks before the presidential election), and that the order authorizing electronic surveillance was renewed three times. Doing some simple math based on the 90-day surveillance periods, this means that the electronic surveillance order for Mr. Page was renewed once during the transition and twice under the current administration. In addition to alleging that the dossier’s origin wasn’t disclosed to the FISC, the memo also notes that Mr. Steele (the dossier’s author) had discussions with a senior DOJ official (Bruce Ohr) that revealed a strong ideological bias against then-candidate Trump, and that that bias was not communicated to the FISC either. So why don’t I think the memo succeeds in making its case? I’m glad you asked.

You’re relieved. After a long investigation concerning some troubling conduct throughout the Pacific Northwest that may have led to the United States being defrauded by one of its contractors, you’ve brought this stressful period to a close. You’ve entered a Non-Prosecution Agreement with the U.S. Attorney’s Office for the Western District of Washington. Perhaps the agreement even includes a civil settlement as well, resolving several parallel investigations.

But not two weeks later, an Assistant U.S. Attorney (“AUSA”) for the District of Oregon informs you that you’re the target of a criminal probe concerning the exact same conduct. How is this possible? As unfair as it seems, it has long been the position of federal agencies and DOJ components that other DOJ components are not bound by an agreement unless the agreement provides as much.

Consider the case of Prime Partners, a Swiss asset management firm accused of aiding U.S. taxpayers in New York and elsewhere of evading their federal income taxes. In August, the U.S. Attorney’s Office for the Southern District of New York entered a Non-Prosecution Agreement with Prime Partners in exchange for extraordinary cooperation with the Office’s investigation and the firm’s institution of substantial changes to its practices. The agreement states:

It is further understood that this Agreement does not bind any other federal, state, or local prosecuting authorities other than this Office and the [DOJ] Tax Division. If requested by Prime Partners, this Office and the Tax Division will, however, bring the cooperation of Prime Partners to the attention of such other prosecuting offices or regulatory agencies.

Parties caught up in such a situation should consider a few things:

Beware of the kind of limiting language in the Prime Partners agreement, which is common in government settlements.

Insist on language in any plea or other settlement agreement that to the effect that it binds other federal agencies, or at least all other components of the Department of Justice.

If you find yourself caught up in the kind of bind I describe at the beginning, consider an appellate challenge.

Healthcare news and information site RACmonitorreported with some fanfare in early November of last year that DOJ Civil Fraud Section Director Michael Granston (a friend and former DOJ colleague) had announced at a conference on October 30 that DOJ would begin to seriously consider urging courts to dismiss meritless qui tam or whistleblower actions brought under the False Claims Act at or shortly after the government had reached its intervention decision.

On November 17, Law360reported that DOJ, in response to RACmonitor’s reporting, had denied adopting a more aggressive stance towards seeking dismissal of qui tam actions it had determined to be lacking in merit.

Now we learn that DOJ’s denial of a policy change to Law360 back in November was not entirely accurate. Indeed, on January 10, the same Michael Granston quoted by RACmonitor issued an internal memorandum marked “Privileged and Confidential; For Internal Government Use Only” announcing a general framework for evaluating when to seek dismissal of qui tam actions, pursuant to 31 USC § 3730(c)(2)(A)—something DOJ has only sparingly done over the last 30 years since the FCA was substantially amended.

On January 13, 1981, the Supreme Court decided Upjohn Co. v. United States. Thirty-seven years later, it’s hard to think of a judicial decision that has had a more significant effect on internal investigations. The Court’s opinion made no mention of any particular warning procedure, instead focusing on the application of the attorney–client privilege to corporate clients. But it prompted the near-universal practice of lawyers who are conducting internal investigations advising corporate employees that they represent the company, rather than the employee, and that the company may waive the privilege at any time. There are countlessarticleshighlighting the importance of providing the Upjohn warning while conducting internal investigations. I won’t rehash those points here. Instead I want to introduce a few fun factoids about the case itself, and the players involved in litigating it.

Hypothetical Bad News. You or your company has been served with a civil investigative demand requiring you to produce documents and answer questions from the government. The Department of Justice (DOJ) is investigating you for suspected violations of the False Claims Act, or perhaps for participating in a price-fixing conspiracy in violation of the antitrust laws. The investigation could drag on for years and—if you’re found liable—you may be on the hook for millions of dollars.

HypotheticalWorse News. Government agents have also inspected your premises pursuant to a search warrant, and you learn that associates of yours have been subpoenaed to testify before a grand jury. You are the target—or at least the subject—of a criminal investigation. For a company, a criminal conviction and associated fines could be devastating. For an individual, it could result in the loss of your liberty.

To provide a more concrete example, there have been dozens of administrative and criminal proceedings over the last few years that grew out of a massive public corruption scandal involving the bribing of dozens of Navy officials in exchange for participating in or turning a blind eye to baseless bills from an overseas defense contractor. Many participants have been criminally prosecuted, but the criminal investigation (which remains ongoing) has also coincided with administrative enforcement actions that resulted in the debarment of numerous contractors, permanently preventing them from doing business with the government.

More and more, government officials and agencies bring to bear all of the enforcement tools—civil, criminal, and administrative—in parallel investigations and proceedings to put a stop to unlawful conduct. If you’re the target of parallel investigations, you and your lawyer will need to be mindful about the different discovery tools available to the government, the risks of compromising your rights in one investigation through your response to another, and the need for a global settlement with the government.

All of that could fill a treatise, so I won’t try to cover it here. Instead, I’ll cover:

A brief overview of the DOJ’s approach to parallel investigations and proceedings (they’re favored).

Your chances of halting either a civil or administrative proceeding pending resolution of the criminal case (spoiler alert: not great).

The importance of thinking strategically at every stage of your response—not just about the individual request or process you’re responding to—but also about how it affects the other investigations (it’s really important).

And no one expects a target letter. The Department of Justice defines a “target” of federal criminal investigation as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” Federal prosecutors are encouraged to notify targets of their status and give them a chance to testify before the grand jury when such notification won’t compromise the integrity of the government’s investigation—such as by prompting the target to flee the jurisdiction or destroy evidence. When they’re given, those notifications are known as target letters.

We want our clients to avoid getting those target letters. That starts with great compliance programs and robust internal controls to avoid fraud and other malfeasance. It also takes rigorous and sensitive internal investigations to determine whether there’s a problem. If the government begins its own investigation, potential white collar defendants need careful counsel to avoid enforcement action, which can take the form of civil, criminal, and administrative proceedings, and to achieve the best possible outcome in any enforcement action that does ensue.

Target Letter—published by our Investigations, Compliance & White Collar Team—is a resource for those who are in need of practical information and valuable insights covering a broad range of government investigations and state and federal criminal and civil proceedings. We’ll focus particularly on gathering news and providing analysis of white collar issues related to healthcare, government contracting, technology, money laundering, corruption, and fraud and enforcement developments in the Pacific Northwest. Because no one expects the Spanish Inquisition . . . .

About This Blog

Target Letter—published by the attorneys of Lane Powell’s Investigations, Compliance & White Collar Team—is a resource for those who are in need of practical information and valuable insights covering a broad range of government investigations and state and federal criminal and civil proceedings. The blog’s authors frequently appear before courts and agencies throughout the country in a wide variety of matters and at all stages of proceedings and use this platform to keep readers up-to-date on the latest trends and changes in the regulatory world. To receive future updates, subscribe to the blog by email or RSS feed.

ABOUT OUR INVESTIGATIONS, COMPLIANCE & WHITE COLLAR TEAM

Target Letter—published by the attorneys of Lane Powell’s Investigations, Compliance & White Collar Team—is a resource for those who are in need of practical information and valuable insights covering a broad range of government investigations and state and federal criminal and civil proceedings. The blog’s authors frequently appear before courts and agencies throughout the country in a wide variety of matters and at all stages of proceedings and use this platform to keep readers up-to-date on the latest trends and changes in the regulatory world. To receive future updates, subscribe to the blog by email or RSS feed.